DEFINITIONS AND INTERPRETATION
- In these terms and conditions the following definitions apply unless otherwise stated:
‘Business Day’ means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
‘Commencement Date’ the date on which the Company begins to provide the Services to the Client
‘Contract’ means the contract between the Company and the Client for the supply of Services governed by these Terms and the Order.
‘Client’ means the individual or business entity who purchases Services from the Company and whose details are set out in the Order.
‘Force Majeure Event’ means an event beyond the reasonable control of either party, including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, pandemic, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
‘Group Company’ means a company which is a subsidiary or holding company of the Company, as defined in section 1159 of the Companies Act 2006.
‘Company’ means NXTWEB Digital Ltd a company incorporated in England and Wales under company number 11643094 whose registered office is at International House, 12 Constance Street, London, E16 2DQ, United Kingdom, trading as NXTWEB.
‘Intellectual Property Rights’ means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
‘Order’ means the order placed by the Client through counter-signing the Company’s Proposal form by the electronic signature of a duly authorised representative of the Client.
‘Proposal’ means the written proposal prepared by the Company which contains its proposals and quotation for providing Services to the Clients.
‘Services’ means the services the Company will provide to the Client as specified in the Order.
‘Specification’ means the description or specification of the Services in the Order.
‘Terms’ means these terms and conditions as updated from time to time by the Company.
‘VAT’ means value added tax chargeable under English law for the time being and any similar additional tax.
‘White Label Work’ means Services provided by the Company to a Client who rebrands these services as their own for the benefit of their client.
- Where these Terms use words in their singular form, they shall also be read to include the plural form of the word and vice versa. Where these Conditions use words which denote a particular gender, they shall be also read to include all genders and vice versa.
- The headings in this document are inserted for convenience only and shall not affect the construction or interpretation of these Terms.
- A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
- In these terms and conditions the following definitions apply unless otherwise stated:
TERMS AND CONDITIONS
- These Terms shall apply to all agreements concluded between the Company and the Client to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- These Terms and the Order may only be varied by express written agreement between the Company and the Client.
- The Order constitutes an offer by the Client to purchase the Services in accordance with these Terms. The Client shall ensure that the terms of the Order and any relevant Specification are complete and accurate.
- The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, or when the Company has started to provide the Services having received the Order, whichever happens first, at which point the Contract shall come into existence.
- The Contract constitutes the entire agreement between the Company to provide the Services to the Client and for the Client to purchase those Services, in accordance with these Terms.
- The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or any other contract between the Company and the Client for the supply of Services.
- A Proposal or estimate for the supply of Services given by the Company shall not constitute an offer and shall only be valid for a period of 30 Business Days from its date of issue.
- For any White Label Work the Client understands and agrees that the Company have no contractual relationship and therefore no liability in respect of the ultimate client with whom the Client agrees to perform the White Label Work for.
COMPANY OBLIGATIONS AND WARRANTIES
- The Company warrants that it will provide the Services as stipulated in the Order using reasonable care and skill to conform in all material respects with the Specification.
- The Company shall use all reasonable endeavours to meet any performance dates specified in the Order but any such dates shall be estimates only and time shall not be of the essence for the provision of the Services. The Company shall not be liable for any delay in delivery of the Services caused by a Force Majeure event or the Client’s failure to provide the Company with adequate delivery instructions or any other instructions relevant to the supply of the Services.
- The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law.
- The Company shall be entitled to use a Group Company or other subcontractors for the provision of the Services provided always that the Company shall remain liable to the Client for the performance of the Services as if it had carried them out itself.
CLIENT’S OBLIGATIONS AND INDEMNITIES
- The Client shall provide assistance and technical information to the Company, as reasonably required by the Company in sufficient time to facilitate the execution of an Order in accordance with any estimated delivery dates or milestones. The Client shall have sole responsibility for ensuring the accuracy of all information provided to the Company and warrants and undertakes to the Company that the Client’s employees assisting in the execution of an Order have the necessary skills and authority.
- The Client shall be obliged as quickly as possible and within the agreed deadline to comment on and or approve materials provided under the Services, including (without limitation) advertising copy, search terms and graphic material submitted by the Company. In addition, the Client shall be obliged as quickly as possible and within the agreed deadline to implement changes on websites, in IT systems or where it may otherwise be required by the Company.
- The Client shall be obliged to inform the Company immediately of changes of domain names, websites, technical setup and any other material information regarding the technical infrastructure which may affect the Services delivered by the Company.
- In the event that the Client fails to undertake those acts or provide those materials required under this clause 5 within any agreed deadline (and at least within 30 Business Days of the date requested by the Company) the Company shall be entitled to invoice for the Services that it has supplied and the remaining Services specified in the Order whether or not the Company has been able to deliver them.
- The Client shall indemnify and keep the Company indemnified fully against all liabilities, costs and expenses whatsoever and howsoever incurred by the Company in respect of any third parties as a result of the provision of the Services in accordance with the Order, Specification, or the content of the Client’s advertising or web pages which result in claims or proceedings against the Company for infringement of any Intellectual Property Rights or other proprietary rights of third parties, or for breach of confidentiality or contract or for defamation.
- The Client undertakes to comply with all applicable rules, regulations, codes of practice and laws relating to its use of the Services, including without limitation its obligations under the Data Protection Act 1998, the Regulation of Investigatory Powers Act 2000, Competition Act 2018 and the E-Commerce Directive and equivalent legislation and hereby agrees to indemnify and to keep the Company indemnified in respect of any and all costs, claims or proceedings whatsoever brought against the Company by any third party in connection with any breach of the same by the Client.
- As standard across the Services and unless otherwise notified, the Client shall be exclusively responsible for implementing the optimisation changes recommended by the Company. As notified by the Company, in certain cases for amendments to existing optimisations, the Client shall allow the Company use of the site’s FTP or content management system’s username and password in order to gain access to add in keywords.
- The Company requires that prior notice be given for any alterations relating to the Client’s website(s) that may affect the services supplied by the Company. If alterations are made by the Client or a third party to the Client’s site(s) search engine placements may be affected and the Company cannot be held responsible.
- The Company advises that regular, fresh content added to the site will help to improve the stability of rankings within search engines and the Client understands and agrees that regular, unique content plays an important part in the success of a website and failure to add unique content will lessen the impact of SEO services.
- In respect of all White Label Work the Client shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Company arising out of or in connection with the contract between the Client and their client for the White Label Work.
CHARGES AND PAYMENT
- The charges for the Services shall be calculated on a time and materials basis:
- The charges shall be calculated in accordance with the Company’s hourly fee rate, as set out in the Order;
- The Company’s hourly fee rates are set out within the Company’s current price list;
- The Company shall be entitled to charge an increased fee for additional hours worked by individuals on the Services outside the hours referred to in the Order and in clause 6.1.1.
- The Company reserves the right to charge an increased fee should the Client require the Services to be completed in a shorter timeframe than originally stated on the Order.
- The Company reserves the right to amend the Proposal or an estimate within the Order in the event that an error or omission has been made.
- The Company reserves the right to increase the charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
- The Company shall invoice the Client on completion of the Services if the Services are being provided on a project basis or monthly in advance if the Services are being provided on a retainer basis in accordance with the Order.
- The Company reserves the right to request payment of a deposit by the Client at the Commencement Date and:
- The deposit shall be retained by the Company and offset against the Client’s final invoice on completion of the Services;
- In the event that a Client’s invoice becomes overdue, the Company reserves the right to use funds from this deposit to pay the outstanding invoice;
- The Company reserves the right to suspend the Services until the deposit is replaced should the deposit be used in accordance with 6.5.2.
- The Client shall pay each invoice submitted by the Company:
- Within 30 Business Days of the date of the invoice or in accordance with any credit terms agreed by the Company and confirmed in writing; and
- In full and in cleared funds to a bank account nominated in writing by the Company.
- All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Company to the Client, the Client shall, on receipt of a valid VAT invoice from the Company, pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
- If the Client fails to make a payment due to the Company under the Contract by the due date, then, without limiting the Company’s remedies under clause 12, the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.8 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
- All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
- The Company reserves the right to charge the Client a £20.00 administration fee per overdue payment reminder, which may be issued weekly following the invoice becoming overdue.
- In the event that the Services cannot be delivered either in full or in part due to the Client’s failure to assist or delay in assisting in the execution of the Order, the Company shall be entitled to charge to the Client an estimated amount, corresponding to the amount that would have been due had the Services been rendered in accordance with the Order. The Company shall be entitled to payment on the basis of the Company’s price list applicable from time to time for any additional work required because of the Client’s failure to assist or delay in assisting.
- The charges for the Services shall be calculated on a time and materials basis:
DELAYS AND COMPLAINTS
- In the event that the Client proves that the Services are delayed or not in accordance with the Contract, the Company shall be obliged to remedy or redeliver, at its own discretion, without undue delay. In the event that the Services continue to be not in accordance with the Contract after reasonable attempts have been made to remedy this, the Client shall be entitled to terminate the Order in accordance with clause 12.2.1, provided that the breach is material.
- Complaints concerning delays or breach of Contract shall be submitted immediately after the time when the Client became or should have become aware of the matter. If the Client fails to bring the defect (unless by its very nature it is impossible to ascertain within such a period) to the attention of the Company within 48 hours the Client shall be deemed to have accepted the Services and shall not be entitled to assert remedies based on delays or breach of Contract.
- The Client hereby acknowledges that certain Services rely upon goods and/or services being provided by third parties (‘Third Party Services’). The Client acknowledges that the Third Party Services will be governed by those third parties’ terms and conditions and that the Company cannot provide any warranties in respect of the Third Party’s Services and will not be liable to the Client for any delays and/or failings in respect of the same. Providers of Third-Party Services may provide their own warranties to the Client and the Client must satisfy itself whether or not such warranties (where given) are acceptable for the Client’s business purposes or risk management policies.
- The Company’s only responsibility in respect of the Third-Party Services is to take reasonable care and skill when selecting the providers of the same.
LIMITATION OF LIABILITY
- Except as expressly stated in this clause 8, the Company shall have no liability to the Client for any loss or damage whatsoever arising from or in connection with the provision of the Services or for any claim made against the Client by any third party.
- Without prejudice to the generality of clause 8.1 above, the Company shall have no liability for any losses or damages which may be suffered by the Client whether the same are suffered directly or indirectly or are immediate or consequential which fall into the following categories:
- Any indirect or consequential loss arising under or in relation to the Contract even though the Company was aware of the circumstances in which such loss could arise;
- Loss of profits, loss of anticipated savings or sales, loss of business opportunities, agreements, contracts or goodwill;
- Loss of use or corruption of software, data or information; and
- Fraudulent clicks on any of the Client’s accounts managed by the Company.
- References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
- Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
- Nothing in this clause 8 shall limit the Client’s payment obligations under the Contract.
- Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
- death or personal injury caused by negligence;
- fraud or fraudulent misrepresentation; and
- breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
- To the extent that such liability is not excluded by sub-clauses 8.1 and 8.2, the Company’s total liability (whether in contract, tort (including negligence or otherwise)) under or in connection with the Contract or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise will not in any event exceed the total sum invoiced for the Services.
- The Company shall not be liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third-party software, search engines or websites on which a service is dependent or other deliveries from a third party. The Company shall use its reasonable efforts to assist in remedial efforts if so requested by the Client. Any work connected with remedial efforts as described above shall be charged to the Client separately in accordance with these Terms or (at the Company’s discretion) the Company’s price list applicable from time to time.
- The Company shall not be liable for any changes made without notice by the Client or a third party employed or engaged by the Client to domain names, websites, links, technical setup etc. and affecting the Services delivered by the Company. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Client in accordance with these Terms or on the basis of the Company’s price list applicable from time to time at the Company’s discretion.
- The Company shall use all reasonable endeavours to deliver Services relating to search engine optimisation, links, advertisements, banners, pay per click and google analytics in accordance with the guidelines applicable to the relevant search engines. However, the Company shall not be liable for delayed or non-conforming performance due to changes made to standard terms, assessment algorithms, search criteria, viewing policy, prices and campaign offers or other matters beyond the Company’s control and reserves the right to make changes to Services as a result of the same. In addition, the Company shall not be liable for other changes or discontinuation of search engines.
- The Company shall not be liable for Services relating to search engine optimisation, link building, advertisements, banners or sponsorships leading to a minimum number of views, position or frequency in searches on relevant words or otherwise. In addition, the Company shall not be liable for ensuring that such Services lead to a certain volume of traffic, number of clicks, registrations, purchases or the like.
- The Company shall not be responsible for URLs dropped or excluded by a search engine for any reason.
- If the Client does not implement some or all of the Company’s recommendations, the Company shall not bear any liability for any lack of success experienced by the Client relating to the Services.
- The Company has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
- This clause 8 shall survive termination of the Contract.
INTELLECTUAL PROPERTY RIGHTS
- It is the responsibility of the Client to ensure that they have the right to use any Intellectual Property Rights when they provide any text, image or representation (“Materials”) to the Company for incorporation into the Services.
- The Client hereby grants to the Company, or shall procure the direct grant to the Company of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to use such Materials for the purposes of providing the Services.
- The Client shall be responsible for ensuring that the contents of Materials which the Client has contributed or approved are not in contravention of legislation, decency, marketing rules or any other third-party rights.
- The Client shall indemnify the Company against all damages, losses and expenses suffered or incurred by the Company as a result of the Materials which the Client has contributed or approved being in contravention of legislation, decency, marketing rules or any action that any such Materials infringe any Intellectual Property Rights of a third party.
- The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described above.
- Unless expressly stated otherwise in these Terms or in an Order, the Intellectual Property Rights created, developed, subsisting or used in connection with the Services and whether in existence at the date hereof or created in the future shall vest in and be the property of the Company or the relevant third party from whom the Company has acquired a right of use with a view to executing the Order. The Client agrees to execute and deliver such documents and perform such acts as may be necessary from time to time to ensure such Intellectual Property Rights vest in the Company.
- The Intellectual Property Rights as mentioned in clause 9.2 shall not be used, assigned, distributed, copied, forwarded to online or offline activities by the Client without a separate, express written agreement.
- If the Company makes software, scripts, ASP services etc. available to the Client as part of the execution of an Order, the Client shall only acquire a fully paid-up, worldwide, non-exclusive, royalty-free licence to use such material until the Services under this Contract.
- The Client hereby provides the Company with a fully-paid up, non-exclusive, royalty-free, non-transferable licence to use and display the Client’s name, figure, logo etc. as a reference on the Company’s website and other marketing materials or types of media during the Contract and surviving 18 months after the Contract is terminated. The Client agrees to provide the Company with any recent changes to logos or figures from time to time.
CONFIDENTIALITY AND PERSONAL DATA
- Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, commercial know-how, specifications, inventions, processes, initiatives, clients or suppliers of the other party, except as permitted by clause 10.2.
- Each party may disclose the other party’s confidential information:
- to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
The parties shall comply with their data protection obligations as set out in Schedule 1.
- Subject to the provisions of clauses 12.2 and 12.3:
- if the Services specified in Order are project based then the Contract shall terminate on completion of delivery of the Services by the Company; and
- in any other circumstances the Contract to provide the Services shall be for an initial term of one year and shall renew automatically for a further term of one year on each anniversary of the Commencement Date (‘Anniversary Date’) unless terminated by either party by giving at least 90 days’ prior written notice the other party.
- Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if the other party:
- commits a material breach of the Contract and (if such breach is remediable) fails to remedy that breach within 90 days of that party being notified in writing of the breach; or
- becomes or is insolvent or is unable to pay its debts (within the meaning of the Insolvency Act 1986) or (except for the purposes of a genuine amalgamation or reconstruction) a petition is presented or meeting convened or resolution passed for winding up the defaulting party or the defaulting party enters into liquidation whether compulsorily or voluntarily or compounds with its creditors generally or has a receiver, administrator, or administrative receiver appointed over all or any part of its assets or the defaulting party ceases to carry on all or a substantial part of its business.
- Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to the Client if:
- the Client fails to pay any amount due under the Contract on the due date for payment; or
- there is a change of control of the Client.
- Subject to the provisions of clauses 12.2 and 12.3:
CONSEQUENCES ON TERMINATION
- On termination or expiry of the Contract:
- the Client shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Client immediately on receipt;
- if the Client wishes to terminate the Contract earlier than the Anniversary Date without giving the requisite notice in accordance with clause 12.1.2, the Client shall pay to the Company an early termination fee equal to the charges that would be payable to the Company for the Services during the 90 days’ notice period.
- the Client shall return all Company materials which have not been fully paid for. If the Client fails to do so, then the Company may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
- Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
- Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
- On termination or expiry of the Contract:
- Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event.
- If a party believes that a Force Majeure Event has occurred, such party shall immediately inform the other party of the start and end of the Force Majeure Event.
- Notwithstanding the other provisions of the present Terms, each party shall be entitled to terminate the Contract without liability to the other by written notice to the other party in the event that the performance of the Contract is impeded for more than 6 months due to a Force Majeure Event.
- The Company reserves the right to modify or discontinue, temporarily or permanently, the Services with or without notice to the Client and the Company shall not be liable to the Client or any third party for any modification to or discontinuance of these Services save for the return of any prepaid sums in connection with the provision of the Services which are subsequently not provided.
- The Company shall be free to provide its Services to third parties whether during or following the provision of the Services to the Client.
- During the term of the Contract and for a period of 12 months thereafter, the Client agrees not to employ or engage or offer to employ or engage anyone designated by the Company to work on the Services.
- The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
- Nothing in this clause shall limit or exclude any liability for fraud.
- Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
- Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this Contract deleted under this clause 15.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
- Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Assignment and other dealings.
- The Company may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
- The Client shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Company.
Third party rights.
- Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
- The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
- Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or sent by email to the address specified in e mail or other written correspondence between the Client and the Company and as reproduced in the Order.
- Any notice or communication shall be deemed to have been received:
- if delivered by hand, at the time the notice is left at the proper address;
- if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
- if sent by fax or email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 220.127.116.11, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
- This clause 15.10 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
- Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.
- Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
- For the purposes of this paragraph 1 references to “personal data”, “data subject”, “personal data breach”, “processing”, “data processor” and “data controller” shall have the meaning specified in the Data Protection Act 2018 or with effect from 25th May 2018 the General Data Protection Regulation (EU) 2016/679 and any legislation replacing or supplementing the same.
- Each party shall comply with any applicable data protection, privacy or similar laws anywhere in the world (“Data Protection Laws”), including the Data Protection Act 2018 and the General Data Protection Regulation (EU) 2016/679, that apply in relation to any personal data processed in connection with this Agreement and render any such assistance and co-operation as is reasonably necessary or reasonably requested by the other party.
- When the Company processes any personal data collected from or about individuals on the Client’s behalf when performing its obligations under this Contract, the parties record their intention that the Client shall be the data controller in respect of such personal data and the Company shall be the data processor in relation to such personal data and the Company agrees that it will:
- process such personal data only in accordance with the Client’s written instructions;
- promptly notify the Client if the Company receives notice of any complaint or communication which relates to the processing of such personal data or to either party’s compliance with Data Protection Laws unless legally prohibited;
- take appropriate technical and organisational security measures against unauthorised or unlawful processing of such personal data and against accidental loss of or damage to such personal data in accordance with the Seventh Data Protection Principle as set out in the Data Protection Act 2018 and any legislation replacing or supplementing the same, which shall include the measures set out in this Agreement;
- not engage another processor without the prior specific or general written consent of the Client;
- as an exception to the requirements of sub-paragraph 3.4, the Client agrees that in an emergency situation where disclosure or transfer of such personal data is necessary to preserve the integrity of the personal data, the Company shall be entitled to disclose or transfer such personal data to a third party to the extent only as is required for such purpose. The Company shall inform the Client of the intended disclosure or transfer, together with the identity of the third party, where possible prior to the event or where pre-notification is not possible as soon as possible after the event, in order to give the Client the opportunity to object to such disclosure or transfer;
- ensure that with effect from 25th May 2018 any disclosure or transfer of such personal data to third parties pursuant to sub-paragraphs 3.4 and 3.5 shall be made subject to the same data protection obligations as are contained in this paragraph 3 by way of contract or other legal act under EU or Member State law;
- not cause or permit any personal data to be transferred to countries outside the European Economic Area that have not received a binding adequacy decision by the European Commission or competent national data protection authority unless subject to the terms of the EU Standard Contractual Clauses or other appropriate transfer mechanism that provides an adequate level of protection in accordance with applicable Data Protection Laws;
- give reasonable assistance to the Client to enable it to respond within required timescales to a request made by a data subject to exercise his or her rights under Data Protection Laws in relation to personal data processed by the Company on behalf of the Client;
- taking into account the nature of the Company’s processing and the information available to the Company:
- provide reasonable assistance to the Client in undertaking data protection impact assessments relating to the Services provided by the Company; and
- provide reasonable assistance to the Client in ensuring compliance with the Client’s security and breach notification obligations under Data Protection Laws;
- ensure that persons authorised on behalf of the Company and its sub-contractors to process such personal data are committed to contractually binding confidentiality commitments or are subject to a statutory obligation of confidentiality;
- promptly notify the Client if it becomes aware of any personal data breach that involves personal data processed by the Company on behalf of the Client;
- take all reasonable steps to address such a personal data breach, including, where appropriate, measures to mitigate its possible adverse effects and shall consult with the Client in respect of such resolution or mitigation;
- at the Client’s option, delete or return all such personal data to the Client on termination of this Agreement and delete existing copies except to the extent that retention of the personal data is required by law; and
- make available to the Client and its regulators all information necessary to demonstrate compliance with the obligations in this paragraph 3.